White v. Smith

• Citation: 808 F.Supp.2d 1174
• Decision Date: 19 October 2011
• Docket Number: No. 4:09CV3145.,4:09CV3145.
• Parties: Joseph E. WHITE, Plaintiff, v. Richard T. SMITH, in his official capacity, Burdette Searcey, Dep., in his official and individual capacities, Gerald Lamkin, Dep., in his official and individual capacities, Jerry O. DeWitt, Sheriff, in his official and individual capacities, Wayne R. Price, PhD., in his official and individual capacities, and County of Gage, Nebraska, a Nebraska political subdivision, Defendants.
• Court: U.S. District Court — District of Nebraska

808 F.Supp.2d 1174

Joseph E. WHITE, Plaintiff,

v.Richard T. SMITH, in his official capacity, Burdette Searcey, Dep., in his official and individual capacities, Gerald Lamkin, Dep., in his official and individual capacities, Jerry O. DeWitt, Sheriff, in his official and individual capacities, Wayne R. Price, PhD., in his official and individual capacities, and County of Gage, Nebraska, a Nebraska political subdivision, Defendants.

No. 4:09CV3145.

United States District Court, D. Nebraska.

Aug. 8, 2011.Memorandum Denying Reconsideration Oct. 19, 2011.

Douglas J. Stratton, Stratton, Delay Law Firm, Norfolk, NE, Herbert J. Friedman, Friedman Law Offices, Jeffry D. Patterson, Robert F. Bartle, Bartle, Geier Law Firm, Lincoln, NE, for Plaintiff.

Jennifer M. Tomka, Richard L. Boucher, Boucher Law Firm, Patrick T. O'Brien, Butler, Galter Law Firm, Paul L. Douglas, Paul Douglas, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

WARREN K. URBOM, Senior District Judge.

On June 29, 2010, Defendants Richard Smith, Jerry DeWitt, Burdette Searcey, Wayne Price, Gerald Lamkin, Kent Harlan, and Mark Meints filed a motion for summary judgment. (ECF No. 61.) On January 23, 2011, briefing on this motion was completed, and the defendants filed a motion to strike certain exhibits that the plaintiff, Joseph E. White, submitted in opposition to the defendants' motion for summary judgment. (ECF No. 129.) My analysis of these motions follows.

I. THE DEFENDANTS' MOTION TO STRIKE

In their motion to strike, the defendants argue that I should not consider the following exhibits when determining whether the individual defendants are entitled to qualified immunity: 1) the affidavit of Donald Luckeroth, 2) the affidavit of Richard Leo, 3) “any and all depositions taken in 2010 submitted as ... Exhibits by Plaintiffs,” and 4) “any exhibits submitted that were created between 1985 and 1989 by the Beatrice Police Department.” (Defs.'s Mot. to Strike at 2, ECF No. 129.)

A. The Luckeroth and Leo Affidavits

The defendants have moved to strike the affidavit of Donald F. Luckeroth, ( see generally Luckeroth Aff., Pl.'s Ex. 144, ECF No. 113–3), and the affidavit of Dr. Richard A. Leo, (Leo Aff., Pl.'s Ex. 142, ECF No. 112–1 to 113–1). ( See Defs.' Br. at 1, 4–5, ECF No. 130.) I have found that it is unnecessary for me to consider these affidavits in order to resolve the defendants' motion for summary judgment; therefore, the defendants' motion to strike these affidavits will be denied as moot.

B. The 2010 Depositions

The defendants have moved to strike “any and all depositions taken in 2010 submitted as an Exhibits [sic] by Plaintiffs with their opposition.” (Defs.' Mot. at 2, ECF No. 129.) More specifically, the defendants object to my consideration of the Deposition of Donald Luckeroth (Pl.'s Ex. 89, ECF No. 108–8), the Deposition of Ralph Stevens, (Pl.'s Ex. 91, ECF No. 109–1), the Deposition of William Fitzgerald, (Pl.'s Ex. 99, ECF No. 109–9), the Deposition of Thomas Winslow, (Pl.'s Ex. 104, ECF No. 109–14), the Deposition of Kathleen Gonzalez, (Pl.'s Ex. 109, ECF No. 110–5), the Deposition of Ada Joann Taylor taken on September 28, 1989, (Pl.'s Ex. 115, ECF No. 110–11), the Deposition of James Dean (Pl.'s Ex. 122, ECF No. 111–5), and the Deposition of Ada Joann Taylor taken on November 3, 2010 (Pl.'s Ex. 140, ECF No. 111–23).

The defendants argue first that these depositions must be stricken because they were “taken in violation of the Court's Order to Stay.” ( See Defs.' Br., Attach. 1 at 14–18, ECF No. 130–1.) ¹ It is true that on June 30, 2010, the defendants filed a “Motion to Stay Proceedings,” (ECF No. 76), and on August 12, 2010, 2010 WL 3199866, the magistrate judge entered an order stating, “All discovery in this case shall be stayed until 30 days after the court rules on the defendants' pending motion for summary judgment,” (ECF No. 102). With the exception of the Deposition of Ada Joann Taylor taken on September 28, 1989, the depositions listed above were taken during the period covered by the discovery stay ordered by the magistrate judge. However, none of these depositions was taken in the instant case (or any of the cases in the group that includes the instant case).² The Deposition of Ada Joann Taylor dated September 28, 1989, was taken in State v. White, Doc. K, Page 46 (Gage Cnty. Ct.), and the remaining depositions were taken in connection with a group of Nebraska state cases that includes Dean v. State, No. CI 10–90 (Gage Cnty. Ct.), Taylor v. State, No. CI 10–91 (Gage Cnty. Ct.), White v. State, No. CI 10–92 (Gage Cnty. Ct.), Winslow v. State, No. CI 10–93 (Gage Cnty. Ct.), and Gonzalez v. State, No CI 10–94 (Gage Cnty. Ct.). Because the depositions were taken in state cases that were not subject to the discovery stay imposed in the instant case, it cannot be said that these depositions were taken in violation of the magistrate judge's order.

In their reply brief, the defendants state,

... Plaintiffs White et al. argue that Defendants' contention that the depositions taken in the State case were taken in violation of the Court's Order to Stay is not true. However, during the hearing on the Defendants' Motion to Stay, the Court indicated that it would not try to control discovery in the State case, but that such evidence that might be obtained through the State case is likely to be inadmissible in the current federal case. The Plaintiffs continued with discovery in the State case at their own peril. The Court, upon the Defendants' objections, should disallow discovery submitted in the federal case that was taken during the time in which the Stay was in place.

(Defs.' Reply Br. at 4, ECF No. 134.) I note in passing that I can find no record of any hearing on the defendants' motion to stay, nor can I verify that the magistrate judge warned the parties that the state court depositions might not be admissible in the instant case. In any event, I remain unpersuaded that the depositions cannot be considered merely because discovery was stayed in the instant case.

The defendants have also made broad hearsay, relevance, and foundation objections to the depositions. ( See Defs.' Br., Attach. 1 at 14–18, ECF No. 130–1.) To the extent that these objections are directed to the depositions in their entireties, the objections are overruled.

In the reply brief that they have submitted in support of their motion for summary judgment, the defendants argue that the 2010 depositions of Winslow, Taylor, and Gonzalez should not be considered because they are “self-serving” and because there is “nothing in the record to support the allegations contained therein.” (Defs.' Reply Br. at 9, ECF No. 128.) In essence, the defendants argue that because there is no evidence apart from the depositions “to dispute the material facts presented by the Defendants,” and because there is no evidence of an improper motive on the part of the investigators, I should disregard the depositions. ( Id. at 11.) The defendants' argument is not persuasive. I shall not exclude the plaintiff's exhibits on the ground that there is not more evidence available in some other form to corroborate witnesses' sworn statements.

C. The Beatrice Police Department Records

The defendants have moved to strike “any exhibits submitted that were created between 1985 and 1989 by the Beatrice Police Department.” (Defs.' Mot. at 2, ECF No. 129.) ³ The defendants argue first that I must strike these “BPD Reports” because they are irrelevant and because there has been “no showing that the Defendants considered these documents in their investigation.” ( See Defs.' Br., Attach. 1 at 7–8, 10–12, 14–16, 18–19.) I note, however, that in the brief filed by the defendants in support of their summary judgment motion, the defendants argue that when Sheriff DeWitt hired Burdette Searcey as a Deputy Sheriff, “Searcey was then able to review BPD reports and obtain more information about the Wilson homicide.” (Defs.'s Br. at 11, Statement of Facts ¶ 25, ECF No. 62.) According to Searcey, the BPD reports “verified information [Searcey] received in [his] independent investigation and confirmed his theory that more than one person was involved in the crime.” ( Id.) In light of these facts, the defendants' argument that the BPD reports are irrelevant is not well-taken.

The defendants also submit—without supporting argument or elaboration—“Hearsay” and “Foundation” objections to the BPD reports. ( See Defs.' Br., Attach. 1 at 7–8, 10–12, 14–16, 18–19.) The hearsay objection is overruled. The defendants' foundation objection, however, merits discussion.

Though their motion to strike does not expressly challenge the authenticity of the BPD reports, I note that in the reply brief submitted in support of their motion for summary judgment, the defendants state, “Most of the Plaintiff's exhibits are inadmissible and presented without authentication.” (Defs.' Reply Br. at 4, ECF No. 128.) A document that has not been authenticated cannot be considered in connection with a summary judgment motion. See, e.g., DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 825–26 (8th Cir.2009) (quoting Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir.2005)). “Federal Rule of Evidence 901(a) provides that the requirement of authentication is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ” Jones v. National American University, 608 F.3d 1039, 1045 (8th Cir.2010). “The party authenticating the exhibit ‘need only prove a rational basis for that party's claim that the document is what it is asserted to be.’ ” Id. (quoting United States v. Wadena, 152 F.3d 831, 854 (8th Cir.1998)). “This may be done with circumstantial evidence.” Id. (quoting Wadena, 152 F.3d at 854). See also United States v. Natale, 526 F.2d 1160, 1173 (2d Cir.1975) (providing an example of...